Immigration reform has been and continues to be a complex and controversial political issue. One major point of contention has been undocumented workers. In 1997, the United States government started the E-Verify program in an effort to prevent and reduce undocumented workers’ ability to find employment. It is an online program that matches information provided on I-9 forms with the government’s employment eligibility records. If there is a mismatch between the information provided by the employer and the information in the government’s record, the employer is required to inform the employee. The employee then has 8 days to appeal and correct the mismatch. An employee may continue to work while the information is being corrected.
The program is currently voluntary in most states, like Washington. However, some states, as well as, federal offices and federal contractors have made the use of E-Verify mandatory. Current immigration reform proposals could make the program mandatory in all states. This may prevent more undocumented workers for finding work, but it may also lead to unintended discrimination.
Mistakes in the System
The discrimination concerns may occur even before an employee is hired. Employers are not supposed investigate employment eligibility status prior to offering a position. This is intended as a protection for both the employee and the employer from potential discrimination problems. It may not be obvious how knowing a person’s employment eligibility status could be discriminatory, after all an employer cannot hire an ineligible person. However, a false mismatch with E-Verify may preemptively disqualify an eligible individual.
There are a number of reasons for a mismatch to occur when verifying eligibility. One of reason could be the way the employer inputs a person’s name. Some cultures have multiple last names or traditionally place their family name before their first name. If an employer inputs the names in a different order than the government has on record, then an eligible person may be deemed ineligible. These culturally or nationally based name variations could lead to a disproportionate number of “ineligible” minorities and foreign-born individuals who are not offered employment. Under Title VII of the Civil Rights Act of 1964, not hiring a person based on race or national origin is discriminatory. Although an employer may not be consciously discriminating based on race or national origin, it may appear that way if number of foreign-born or minorities are rejected without other reasons.
Even post-offer employment eligibility verification can result in unintended discriminatory effects based on national origin or race. Employers are required to notify employees of mismatches so that the employee may meet the 8 day appeal deadline. Failure to inform an employee or an employee not understanding the requirements and limited timeframe may also lead to a disproportionate number of foreign-born employees being terminated which may be seen as discriminatory. It is, also, possible that correcting a mismatch will be too complicated or time consuming for an employee or employer to find the employment situation worthwhile. These unfortunate and unintended pitfalls are worth noting for both employers and employees since the program is likely to continue and grow.
Complying with employment regulations may have unexpected pitfalls. When implementing new programs an experienced employment law attorney can be of assistance.